PEOPLE v. YANT

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PEOPLE

v.

YANT

July 18, 2001

109821

SC: 109821

COA: 177846

LC: 93-129187-FC

1 May 2001

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v

JAMES N. YANT,

Defendant-Appellant.

On order of the Court, leave to
appeal having been granted and this case having been briefed and
orally argued, the order of October 30, 2000, which granted leave
to appeal is VACATED, and leave to appeal is DENIED because the
Court is no longer persuaded that the questions presented should
be reviewed by this Court.

Markman, J., states:

Although I share much of the
dissent’s concerns regarding the propriety of aspects of the
assistant prosecutor’s conduct, I am unable to conclude,
under all of the circumstances, that a reversal is warranted
because of such conduct. Accordingly, I concur in the order
vacating the order of October 30, 2000, which granted leave to
appeal, and denying leave to appeal.

Taylor, J., (dissenting).

I dissent from the Court’s
order. I would reverse defendant’s convictions and remand
for a new trial because the improper questioning and argument by
the prosecution denied defendant his constitutionally guaranteed
right to a fair trial.

1. While cross-examining defendant
the prosecutor asked if it would surprise him to learn the police
had an informer that was working on him and that "they"
were going to bust him for the marijuana. The prosecutor then
asked defendant if it would surprise him to know that this
informer also indicated he carried a .25 caliber handgun. This
questioning was highly improper because the informant was never
produced at trial. Thus, the defendant was denied his
constitutionally guaranteed right to confront his accusers, i.e.,
defendant had no opportunity to cross-examine the unnamed
witness. Moreover, the prosecutor conceded at a later evidentiary
hearing that she did not even know who the informant was.

2. The prosecution also asked
defendant the following question:

The other attorney who
withdrew and refused to represent you correct?

This question was improper
because it insinuated to the jury that defendant’s first
attorney had withdrawn and refused to represent him.

3. The prosecution further asked
defendant as follows:

Would it surprise you to know
that Officer Underwood said that you were not an informant
for them [Shelby Township police department]?

This question communicated
facts contrary to the truth to the jury. In reality, as
established at the evidentiary hearing, defendant had been an
informant for both Officer Underwood and other members of the
Shelby Township police department.

4. In her closing argument the
prosecutor stated as follows in attempting to explain that there
was no tearing in the victim’s genital area:

But, take it from someone who
knows, who has seen these cases. This doesn’t happen.
There isn’t always physical evidence.

This was improper because it was
akin to the prosecutor testifying to the jury.

I would reverse and remand for a
new trial because I am unable to conclude that the errors were
harmless beyond a reasonable doubt.